Citation Nr: 9807453
Decision Date: 03/13/98 Archive Date: 03/25/98
DOCKET NO. 95-42 254 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
2. Entitlement to a permanent and total disability rating
for nonservice-connected pension purposes.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
M. L. Kane, Associate Counsel
INTRODUCTION
The veteran had active military service from November 1964 to
November 1968.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from an October 1995 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Montgomery, Alabama, which denied entitlement to service
connection for PTSD.
As discussed below, the Board finds that it also has
jurisdiction over the issue of entitlement to nonservice-
connected pension. This issue was raised by the veteran, but
was not adjudicated by the RO. Therefore, the issues have
been reclassified as shown on the first page of this
decision.
In addition to his claim for service connection for PTSD in
September 1995, the veteran also submitted claims for service
connection for hearing loss, tinnitus, a liver condition, a
stomach condition, and a nervous condition. None of these
claims were adjudicated by the RO. A review of the claims
file showed that some of these issues may have been
previously adjudicated. Therefore, these issues are referred
to the RO for appropriate action.
REMAND
For the following reasons, the Board finds that additional
evidentiary development is warranted prior to further
disposition of these claims.
A. Nonservice-connected pension
The veteran’s representative argued in its written brief
presentation that the issue of entitlement to nonservice-
connected pension could be inferred from the evidence of
record. The veteran’s representative requested that the
Board assume jurisdiction over this issue and remand this
issue to the RO rather than refer it. In his application for
compensation or pension in September 1995, the veteran
completed the section of the application claiming that he was
totally disabled. Furthermore, he submitted a VA discharge
instruction form dated October 1994 regarding a period of
hospitalization from August to October 1994 which indicated
that he was “not employable.”
In the October 1995 rating decision which is the subject of
this appeal, the RO did not adjudicate the issue of
entitlement to nonservice-connected pension. With his
substantive appeal regarding the denial of service connection
for PTSD, the veteran again submitted the discharge form, and
he stated that this form clearly showed that he was totally
disabled and unemployable due to chronic and severe PTSD.
The United States Court of Veterans Appeals (Court) has held
that a veteran’s NOD may attach to the RO’s failure to
adjudicate a claim reasonably before it, so long as the NOD
could be fairly read as encompassing the RO’s failure to
adjudicate that particular claim. Isenbart v. Brown, 7 Vet.
App. 537 (1995). In this case, the veteran submitted the
discharge form described above with his application for
compensation or pension. A claim for compensation may also
be considered a claim for pension. 38 C.F.R. § 3.151(a)
(1997); see also Kellar v. Brown, 6 Vet. App. 157, 162
(1994). In accordance with Isenbart, the veteran’s
substantive appeal can reasonably be construed as a NOD with
the RO’s failure to adjudicate the claim for nonservice-
connected pension.
Therefore, the Board concludes that it has jurisdiction over
the issue of entitlement to nonservice-connected pension and
agrees with the veteran’s representative that the proper
course of action in this case is to remand this claim. See
also Suttmann v. Brown, 5 Vet. App. 127, 132-133 (1993); In
the Matter of the Fee Agreement of William G. Smith, 10 Vet.
App. 311, 314 (1997) (the Board’s referral of a claim to the
RO was a failure to adjudicate a claim properly before it and
amounted to denial of benefits sought). It is necessary to
remand this claim so that the RO can provide the veteran
notice of the laws and regulations regarding entitlement to
nonservice-connected pension and give him an opportunity to
submit evidence and argument related to this issue. See
Bernard v. Brown, 4 Vet. App. 384 (1993).
While this claim is in remand status, there is additional
evidentiary development which should be completed. The
veteran should be afforded the appropriate VA examinations on
remand in order to determine the severity of all of his
current disabilities, particularly as to the effect of such
disabilities on employability. The medical evidence
indicates that he is being treated for or has been diagnosed
with PTSD, chronic headaches, esophageal reflux,
hypertension, alcohol/polysubstance abuse, bipolar disorder,
asbestosis, residuals of an injury to the left shoulder and
elbow, hearing loss, tinnitus, persistent hepatitis, liver
problems, and multiple joint pain. See Roberts v. Derwinski,
2 Vet. App. 387, 390 (1992), citing 38 C.F.R. §§ 3.340(a),
4.15, and 4.17 (1997) (before a determination can be made as
to whether a total and permanent disability rating for
pension purposes is warranted, “an evaluation must be
performed under the Schedule for Rating Disabilities to
determine the percentage of impairment caused by each
disability.”). Such examinations are necessary in this
case. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991);
Santiago v. Brown, 5 Vet. App. 288, 292 (1993).
After the above evidentiary development has been completed,
the RO should adjudicate the veteran’s claim for a permanent
and total disability rating for pension purposes in
accordance with the two standards set forth by the Court.
See Brown v. Derwinski, 2 Vet. App. 444, 446 (1992); Talley
v. Derwinski, 2 Vet. App. 282 (1992); 38 U.S.C.A.
§ 1502(a)(1), (2) (West 1991); 38 C.F.R. §§ 3.321(b)(2) and
4.17 (1997). The RO must first apply the percentage
standards of 38 C.F.R. § 4.16(a) and the other requirements
of 38 C.F.R. § 4.17 (the objective standard). If a permanent
and total disability rating is not warranted under the
objective standard and the appellant is unemployable,
consideration must be given to entitlement to a permanent and
total disability rating on an extra-schedular basis under 38
C.F.R. §§ 3.321(b)(2) and 4.17(b) (the subjective standard).
See Roberts v. Derwinski, 2 Vet. App. 387, 390 (1992)
(whether a permanent and total disability rating could have
been assigned on an extra-schedular basis under 38 C.F.R.
§ 3.321(b)(2) should have been considered). In addition, in
the course of adjudicating a claim for pension, the RO must
also make determinations as to whether any of the
disabilities in question are the result of the appellant’s
willful misconduct. 38 U.S.C.A. § 1521(a) (West 1991); 38
C.F.R. § 4.17a (1997). Finally, evaluations for service-
connected disabilities may be combined with evaluations for
disabilities not shown to be service connected and not the
result of the veteran’s willful misconduct. 38 C.F.R.
§ 3.323(b)(2) (1997).
After the RO adjudicates this claim, the veteran and his
representative should be provided a statement of the case.
In order to perfect his appeal to the Board as to this issue,
it is necessary that the veteran file a substantive appeal
within the appropriate time period. Although the Board finds
that he has submitted a notice of disagreement, his appeal to
the Board regarding this issue is not perfected until he
submits a timely and adequate substantive appeal. See
38 C.F.R. §§ 20.200, 20.202, and 20.302 (1997).
B. Service connection for PTSD
Establishing service connection for a disability requires the
existence of a current disability and a relationship or
connection between that disability and a disease contracted
or an injury sustained during service. 38 U.S.C.A. § 1110
(West 1991); 38 C.F.R. §§ 3.303 and 3.304 (1997); Cuevas v.
Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski,
2 Vet. App. 141, 143 (1992). There are, however, special
requirements that must be met to establish service connection
for PTSD. Service connection for PTSD requires: (1) medical
evidence establishing a clear diagnosis of the condition; (2)
credible supporting evidence that the claimed inservice
stressor actually occurred; and (3) a link, established by
medical evidence, between current symptomatology and the
claimed inservice stressor. 38 C.F.R. § 3.304(f) (1997); see
also Cohen v. Brown, 10 Vet. App. 128 (1997).
With regard to the second element, the evidence necessary to
establish that the claimed stressors actually occurred varies
depending on whether it can be determined that the veteran
“engaged in combat with the enemy.” 38 U.S.C.A. § 1154(b)
(West 1991); see also Gregory v. Brown, 8 Vet. App. 563
(1996); Collette v. Brown, 82 F.3d 389 (Fed.Cir. 1996). The
United States Court of Veterans Appeals (Court) has held that
“[w]here it is determined, through recognized military
citations or other supportive evidence, that the veteran was
engaged in combat with the enemy and the claimed stressors
are related to such combat, the veteran’s lay testimony
regarding claimed stressors must be accepted as conclusive as
to their actual occurrence and no further development for
corroborative evidence will be required, provided that the
veteran’s testimony is found to be ‘satisfactory,’ e.g.,
credible, and ‘consistent with the circumstances, conditions,
or hardships of [combat] service.’” Zarycki v. Brown,
6 Vet. App. 91, 98 (1993).
If the claimed stressors are not combat-related, then the
veteran’s lay testimony, by itself, is insufficient to
establish the stressors occurred, and there must be credible
supporting evidence that the stressors actually did occur.
Moreau v. Brown, 9 Vet. App. 389 (1996). “Credible
supporting evidence” of a noncombat stressor may be obtained
from service records or other sources, such as statements
from fellow service members or others who witnessed or knew
of the alleged events at the time of their occurrence.
The veteran submitted specific information regarding his
stressors, such as the names of two deceased individuals that
he allegedly escorted for return to their home in Alabama and
burial in 1967. In order to assure that the evaluation of
the veteran’s claim is fully informed, the RO should attempt
to verify his stressors. The RO should review the veteran’s
service personnel records and determine, if possible, the
dates during which the veteran participated in body escort.
Thereafter, the RO should contact the U.S. Armed Services
Center for Research of Unit Records (USASCRUR), 7798 Cissna
Road, Suite 101, Springfield, Virginia 22150-3197 (formerly
the Environmental Support Group). USASCRUR should be asked
whether it can be confirmed that the named individuals died
on the indicated dates and whether their home state was
Alabama. Also, USASCRUR should, if possible, provide
verification that the veteran participated in body escort out
of Dover Air Force Base, Delaware, while assigned to
Headquarters Company, Fort McPherson, Georgia, in 1967.
Furthermore, the RO should request from the appropriate
military sources any documentation from 1967 which may show
that the veteran traveled on duty from Fort McPherson to
Dover Air Force Base and back to Georgia such as travel
vouchers, billeting requests, or payroll advances.
With regard to the first and third elements, the VA examiner
in February 1994 did render a diagnosis of PTSD. However,
the report does not contain sufficient detail of the
veteran’s alleged inservice stressors or of the objective
findings supporting the diagnosis. Therefore, the Board
finds that the veteran should be provided with an additional
VA psychiatric examination to determine (1) the exact
diagnosis, if any, of his psychiatric disorder; (2) whether
any established inservice stressors were sufficient to
produce PTSD; and, if so (3) whether there is a link between
the current symptomatology and the inservice stressors.
There is also additional evidentiary development which should
be completed with respect to this claim. First, the veteran
has submitted information showing that he is receiving Social
Security disability benefits due, in part, to PTSD. In order
to ensure that the Board has a thorough and complete record
in the adjudication of his claims, the RO should attempt to
obtain all medical and adjudication records relating to his
Social Security disability benefits. See Hayes v. Brown, 9
Vet. App. 67, 74 (1996) (VA is required to obtain evidence
from the Social Security Administration, including decisions
by the administrative law judge, and give the evidence
appropriate consideration and weight); Murincsak v.
Derwinski, 2 Vet. App. 363, 373 (1992); Collier v. Derwinski,
1 Vet. App. 413, 417 (1991).
Also, the latest VA medical records associated with the
claims file are dated in November 1993. The veteran stated
that he was treated for PTSD at the VA Medical Center in
Birmingham, Alabama, until January 1995, and at the VA
Medical Center in Gulfport, Mississippi, in July 1994. He
has also submitted a discharge form from a period of
hospitalization at the VA Medical Center in Tuscaloosa,
Alabama, from August to October 1994. The veteran has
indicated the existence of records which may be relevant to
his claim for service connection and necessary for a full and
fair adjudication of his claim. Robinette v. Brown, 8 Vet.
App. 69 (1995). Therefore, an effort to obtain these records
is warranted.
Accordingly, while the Board regrets the delay, in order to
obtain additional information, this claim is REMANDED for the
following:
1. Ask the veteran to identify the names
and complete addresses of any additional
medical providers who have treated him
for PTSD since 1993. After securing any
necessary releases, request records of
any treatment identified by the veteran
which are not already of record,
including records from the VA Medical
Centers in Birmingham, Tuscaloosa, and
Gulfport. Associate all records received
with the claims file. If private
treatment is reported and those records
are not obtained, the veteran and his
representative should be provided with
information concerning the negative
results, and afforded an opportunity to
obtain the records. 38 C.F.R. § 3.159
(1997).
2. Obtain a copy of the decision of the
Social Security Administration (SSA)
granting the veteran’s claim for benefits
and copies of all medical records
associated with said decision.
3. Ask the veteran to submit an up-to-
date employment statement.
4. Prepare a list of the veteran’s
alleged stressors, together with the names
and approximate dates of death of those
the veteran reported as having been killed
and escorted home by him. (The names of
those the veteran says were killed are in
his substantive appeal dated June 1996).
Provide the veteran’s service dates in
Vietnam and his unit assignment and
primary duties as indicated on service
personnel records. Forward it to the U.S.
Armed Services Center for Research of Unit
Records (USASCRUR), 7798 Cissna Road,
Suite 101, Springfield, Virginia 22150-
3197 (formerly the Environmental Support
Group), and request that it provide any
information which might corroborate the
veteran’s alleged stressors. In addition,
any verification that the veteran
participated in body escort out of Dover
Air Force Base, Delaware, while assigned
to Headquarters Company, Fort McPherson,
Georgia, in 1967 should be provided.
5. Request from the appropriate military
sources any documentation from 1967 which
may show that the veteran traveled on
duty from Fort McPherson to Dover Air
Force Base and back to Georgia in the
performance of the alleged body escort
duties (i.e., travel vouchers, billeting
requests, payroll advances).
6. Review the claims file and make a
determination as to whether the veteran
is a veteran of combat. Prepare a
memorandum describing which of the
veteran’s stressors are combat-related
and require no further verification, if
he is determined to have been a veteran
of combat, and which have been verified
as having occurred during military
service, if the stressors are not combat-
related or the veteran is not a veteran
of combat.
7. Schedule the veteran for general
medical, psychiatric, respiratory,
audiology, and orthopedic VA examinations
(and additional special examinations, if
indicated) in order to determine the
diagnosis and severity of disability of
all of his current conditions. The entire
claims folder and a copy of this remand
must be made available to and be reviewed
by the examiners prior to these
examinations. The examination reports
should reflect review of pertinent
material in the claims folder.
All necessary tests should be performed.
Specifically, the examiners should
describe the level of disability
attributable to the following conditions:
PTSD, chronic headaches, esophageal
reflux, hypertension,
alcohol/polysubstance abuse, bipolar
disorder, asbestosis, residuals of an
injury to the left shoulder and elbow,
hearing loss, tinnitus, persistent
hepatitis, liver problems, multiple joint
pain, and any other disorders noted in
connection with the examinations.
The psychiatric examiner should conduct
all necessary special studies or tests,
including appropriate psychological
testing and evaluation, in order to
determine the diagnosis, etiology, and
extent of any psychiatric disorder(s).
The diagnosis should be in accordance with
the American Psychiatric Association’s
Diagnostic and Statistical Manual of
Mental Disorders -IV. The examiner should
integrate the previous psychiatric
findings and diagnoses, including the
diagnosis of PTSD rendered in February
1994, with any current findings in order
to obtain a complete picture of the nature
of the veteran’s psychiatric status.
If a diagnosis of PTSD is deemed
appropriate, the psychiatric examiner is
asked to express an opinion as to (1)
whether the verified inservice stressors
were sufficient to produce PTSD; and, if
so, (2) whether there is a link between
the current symptomatology and the
verified inservice stressors. The
psychiatric examiner is asked to
distinguish between the veteran’s service-
related stressors and any nonservice-
related stressors, if appropriate.
All examiner(s) must give a full
description of any limitation of activity
imposed by each of the veteran’s
disabilities and express opinions as to
the degree of interference with the
veteran’s ability to obtain and maintain
gainful employment caused by each
disability identified on examination. The
examiners should also state whether the
veteran’s disabling conditions are
susceptible to improvement through
appropriate treatment.
All examiners must provide a
comprehensive report including complete
rationales for all conclusions reached.
8. Following completion of the foregoing,
the RO must review the claims folder and
ensure that all of the foregoing
development actions have been conducted
and completed in full. If any development
is incomplete, appropriate corrective
action is to be implemented. Specific
attention is directed to the examination
reports. If an examination report does
not include fully detailed descriptions of
pathology and all test reports, special
studies or adequate responses to the
specific opinions requested, the report
must be returned for corrective action.
38 C.F.R. § 4.2 (1997).
9. After completion of the above
evidentiary development, readjudicate the
veteran’s claim for service connection
for PTSD. See Cohen v. Brown, 10 Vet.
App. 128 (1997); Moreau v. Brown, 9 Vet.
App. 389 (1996); VA ADJUDICATION PROCEDURE
MANUAL M21-1, Part VI, 11.38 (Aug. 26,
1996). If the decision remains
unfavorable, provide the veteran and his
representative a supplemental statement
of the case, and allow an appropriate
period of time within which to respond.
The RO should then adjudicate the
veteran’s claim for nonservice-connected
pension with consideration of all the
evidence of record. If applicable, a
determination should be made, and
adequate rationale should be provided, as
to whether any of the disabilities are
the result of the veteran’s willful
misconduct. Consider whether the veteran
is permanently and totally disabled under
the “average person” standard of
38 U.S.C.A. § 1502(a)(1) and 38 C.F.R.
§ 4.15 or the “unemployability”
standard of 38 C.F.R. § 4.17. If the
veteran does not meet the percentage
requirements, a permanent and total
evaluation for pension purposes should be
considered under 38 C.F.R. § 3.321(b)(2)
(1997).
If the determination as to nonservice-
connected pension is adverse to the
veteran, provide him and his
representative a statement of the case.
The veteran and his representative should
be notified that after the statement of
the case has been issued, a substantive
appeal must be filed within the
applicable time period in order to
perfect any appeal to the Board regarding
this issue. 38 C.F.R. §§ 20.200 and
20.302.
The veteran is free to furnish additional
evidence while his case is in remand
status. Booth v. Brown, 8 Vet. App. 109
(1995).
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The veteran need take no
further action until he is further informed. The purpose of
this REMAND is to obtain additional information. No
inference should be drawn regarding the final disposition of
these claims as a result of this action.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (Historical and Statutory Notes) (West Supp. 1997).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
J. SHERMAN ROBERTS
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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